Where the Legislature stands on water & the environment in its final week

by Trevor Russell

This 2017 Legislature has featured a series of sweeping assaults on our environment, including widespread rollbacks to bedrock environmental finance and policy positions that threaten to undermine water quality and river health throughout the state.

With less than one week to go in the session, many of the worst water-related provisions have been packaged into a handful of “omnibus” bills that each include multiple budget and policy provisions. FMR continues to oppose these bad provisions while advocating for full Forever Green funding and a strong state bonding bill. In addition, some important victories have helped ward off three of the most offensive environment provisions in play this session.  

Bills of concern

Some of these have been vetoed by the governor in round one, but could re-emerge at any moment. One is awaiting conference committee action.  (Click on the bill number to jump to the detailed overview below.):
• Omnibus Environment & Natural Resources Finance & Policy (HF888) 
• Omnibus State Government Finance (SF605)
• Omnibus Legacy Finance (HF707) --  (We just issued a call for action to protect the Legacy Amendment: TAKE ACTION NOW.)
• Omnibus Agriculture Finance (SF780)

Bonding

While the prospects of a bonding bill remain uncertain, FMR remains supportive of a robust bonding bill that includes the following two priorities: 
 $45M for Conservation Reserve Enhancement Program 
These funds help willing farmland owners conserve soil, eliminate erosion, protect habitat and improve water quality. They also help cover the cost of buffers required by the 2015 buffer law and 2016 amendment. State bonding at $45 million for the Reinvest in Minnesota (RIM) Reserve will leverage another $105 million in Federal dollars. Full funding through bonding reduces CREP demand for Legacy dollars.
$167M for Water Infrastructure Investment 
Funds are needed to help local governments repair and modernize aging wastewater and drinking water systems and keep clean water affordable for all Minnesota communities. 

Victories

It’s not all 100% bad news this session. Here are a few of the worst provisions dropped due to pushback from FMR, our allies and our many River Guardian advocates:
• Suspension of Water Quality Standards [dropped in conference committee]
This Senate provision in HF 888 would have put the Minnesota Pollution Control Agency at odds with the Clean Water Act, which (for now, at least) requires compliance with EPA-approved standards. This provision called to suspend water quality standards adopted between mid-2014 and mid-2019 if a facility would have to make updates to protect water quality. It aimed to block the hard-won river phosphorus standard, as well as future sulfate or nitrate standards. (Learn more about these pollutants in the State of the River Report.)
• Weakening Environmental Review Standards for the Largest Feedlots [dropped in conference committee]
This provision sought to double the size a large feedlot could be — from 1,000 units to 2,000 — before requiring environmental review. Environmental review is critical for rural neighbors to understand what's being proposed and to have a meaningful say in the process. The current standard is very generous, impacting only the largest 7% of feedlots in our state; only nine large feedlots were required to do an environmental review in 2016.
• Shuttering the Environmental Quality Board [amended in committee]
Language that would have disbanded the EQB in its entirety was dropped following public objections. While anti-EQB language remains in HF888, it seeks to greatly restrict the board's duties and powers rather than eliminate it entirely.

You can help!

This Legislative session has been especially challenging. We appreciate everyone sticking with us and continuing to pay attention to these important issues. We also know you're pressed for time, so we're making it quick and easy to take action for clean water.
• Now through the end of the session, KeepMNClean.org is posting daily actions you can take to influence the governor and your legislators. Sign up for their weekly email digest with to receive a select handful of actions you can take online.
• If you prefer to weigh in less frequently, or focus specifically on the Mississippi River, sign up to be an FMR River Guardian and we'll be in touch when we need your help the most. 

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A detailed look at the legislation 

Omnibus Environment & Natural Resources Finance (HF888)

Status: vetoed 5/12/17
Veto information: read Governor Dayton’s veto letter here.

This environmental budget bill proposes a $30 million reduction in general fund support for environmental agencies, including total elimination of general fund support for the Minnesota Pollution Control Agency. This bill also cuts $22 million in support for Soil and Water Conservation Districts and moves that money into the Legacy bill in violation of the Legislature’s previous promise to taxpayers.

  1. Buffer Rollbacks: Four provisions undermine critical components of the Governor’s buffer initiative, taking the state backward from where we were before the buffer law passed in 2015. These rollbacks include:
    - Shoreland classification: Removal of about 70% of public waters from 50-foot buffer maps, by limiting the 50-foot buffer requirement to only those waterways that have a county shoreland classification. This reduces buffers from 50ft to 16.5 feet along 24,000 miles of watercourses; equivalent to 200,000 acres of lost buffers – much of which were in place before passage of the 2015 buffer law.
    - Enforcement authority: This provision removes the administrative penalty order enforcement option for counties and watershed districts, leaving only with the Board of Water and Soil Resources with an effective enforcement tool.
    - Buffer delay: This provision delays buffer deadlines by 2 years, despite reports that most counties already have 60 – 100% compliance with the law.
    - Public funding required: Eliminates the buffer requirement unless the state or federal government pays for the entire cost of establishing buffers and makes annual payments or an easement for the land.
  2. Polluter-Prepared EIS: This provision allows corporations to write their own draft environmental impact statements. This effectively puts the fox in charge of the hen house. This is antithetical to the whole point of an environmental review, which is to allow the regulator (and public) to gather information about environmentally harmful impacts of a project and alternatives. Private data used to prepare a draft EIS would not be subject to the Data Practices Act. This prevents the public from accessing all of the underlying data and analyses that support the EIS.
  3. Limiting the Environmental Quality Board: The provision removes most EQB jurisdiction, barring it from considering and investigating environmental issues of community interest. The EQB’s remaining functions would be tailored to assisting business enterprises with environmental regulations and permitting compliance.
  4. Scientific Re-Review: This unusual provision, advanced by the Coalition of Greater MN Cities, allows cities to petition for a “re-review” of agency science used in virtually any proposed or final agency water management action. The science must be evaluated by an Administrative Law Judge (i.e., not a water resource scientist), assisted by a review panel that excludes anyone “directly or indirectly involved with the work…of the agency.” This provision:
    - Eliminates deference to MPCA’s science when a water quality decision is challenged
    - Voids a proposed action (Water Quality standard, clean-up plan, etc) until this process is complete; and
    - Exempts cities from paying for the costs of their own frivolous challenges to agency science – meaning agency budgets must absorb potentially unlimited re-review costs. 
  5. Presumption Against Agency Guidance: Agency guidance, policy, and other interpretations provided are intended to answer common questions, typically from regulated parties, about how the MPCA’s rules and state law would be applied. This provision establishes a presumption that all MPCA & DNR guidance documents, policy or interpretation are invalid and un-promulgated “rules” and must undergo rulemaking at public expense. This makes providing basic guidance on environmental regulation much more complex, time-consuming and expensive – it’s the opposite of streamlining.
  6. Limiting Mining Contested Case and Appeal Options: Since 1969, “contested case hearings” have been the right of all citizens, guaranteeing public participation in important decisions that affect the whole state. A contested case is an opportunity to present evidence, question industry and agency experts, and build a solid record to support smart decisions, including how lands can be reclaimed and what type and amount of financial assurance should be required from mining companies. This bill limits this rights only to adjacent property owners and affected governments.
  7. Buying Expedited Permits: This provision allows permit applicants to pay a fee in addition to the existing permit application fees to expedite the MPCA or DNR permitting process for their business. This disadvantages smaller businesses that may not have the resources to pay an expedited fee, pushing them back in the line.
  8. 16-Year Waste Water Treatment Plant Holiday: This provision exempts cities that build public water treatment facilities from having to make technological updates to comply with clean water standards for 16 years. This:
    - Undermines the state's ability to protect our water from known and future contaminants that harm our health and environment.
    - Delays actions to clean-up pollution.
    - Creates more uncertainty for permit-holders by putting state-issued water pollution permits at odds with the requirements of the federal Clean Water Act.
  9. Removing Protections for Calcareous Fens: Several provisions in HF888 target fens – a rare and sensitive groundwater-fed wetland ecosystem. One provision requires that that the DNR issue a groundwater use permit to irrigators impacting calcareous fens in Pipestone County.
    - The permit, that is significantly longer than other water users can get, is irrevocable in the first 5 years, and after that then only under unfairly limited circumstances.
    - If the DNR does find a reason to revoke the permit, state funds must pay for the private irrigation equipment already installed.- 
    - After the initial fifteen-year term, the permit becomes irrevocable. 
  10. Rules Limiting Use of Lead Shot Prohibited: This provision restricts the DNR from using existing authority to reduce non-target mortality of birds (including Bald Eagles) and wildlife exposed to lead shot. Steel shot is readily available, performs similarly as lead, costs the same or less, and is non-toxic to birds and wildlife that ingest it. Modern ballistics have developed many superior ammunition loads and restricting the use of toxic lead shot makes environmental sense and does not impact Second Amendment rights.
  11. The Plastic Bag Ban Ban: Prohibits local governments them from banning or placing fees on plastic bags. This pre-empts local authority, overrides the will of local voters and bars implementation of a proven method of reducing pollution and protecting habitat.

For more info, view our collation letter sharing our concerns with the House and Senate versions of these bills.

Omnibus State Government Finance (SF605)

Status: vetoed 5/12/17
Veto information: read Governor Dayton’s veto letter here.

This bill includes an entire 30+ page article drafted by the Minnesota Chamber of Commerce that fundamentally changes how all rulemaking, including environmental rulemaking, works in Minnesota. It allows any single legislative committee to intervene and block any proposed or final agency rules and creates an unjustifiably biased “peer review” process that effectively turns agency rulemaking authority over to the Legislature.
- Redefines “substantial economic impact” to easily trigger a special “peer review” process.
- Peer review is conducted by a five-person panel that excludes anyone with knowledge of the agency's work.
- Rules are blocked until the “peer review” process is complete AND the Legislature approves the rule by statute.

Omnibus Legacy Finance (HF707)

Status: awaiting conference committee action
In 2008, 1.8 million Minnesota voters approved the Clean Water, Land & Legacy Amendment, which dedicates 3/8th of 1 percent sales tax increase dedicated to water quality, land conservation, parks and trails, and arts and culture. Support for the amendment has grown, with fully 75% of Minnesotans favoring the amendment in a recent non-partisan statewide poll. (1)

The Omnibus Legacy Bill (HF 707) appropriate funding from the Clean Water Land and Legacy Amendment. Included in these bills is a $22 million payment shift that violates the spirit of the Legacy Amendment and flagrantly breaks the trust of millions of Minnesota voters. There are several major problems with the bills:

  1. $22 Million Raid: The House and Senate betray the expectations of Minnesota voters by raiding $22 million in Clean Water Fund money for administrative costs for local governments, breaking the Legislature’s 2015 promise to taxpayers. (2) In 2015, legislators agreed to one-time funding for the first two years of base grants to the state’s 90 soil and water conservation districts (SWCDs) to pay for administrative costs for buffer implementation. If the legislature again raids this fund, for the second consecutive time, it poses a grave threat to the longterm integrity of the Clean Water Fund.

  2. De-Funding Water Protections: The Senate and House versions offset the buffer raid by reducing or eliminating funding for programs that protect our waters. Some examples include:
  • Senate:

- $7.6M cut to Minnesota Board of Water and Soil Resources surface, groundwater and drinking water protection grants
- $5.6M cut to drinking water and surface water protection & restoration grants
- $2.25M cut to riparian easements
- $1.8M cut to Minnesota Board of Water and Soil Resources buffer law implementation assistance
- $1.750M cut to various water monitoring, planning and protection strategies
- $1.45M cut to U of M stormwater management research
- $650,000 less for aquifer monitoring for water supply planning for the Minnesota Department of Natural Resources
- $350,000 cut to U of M Forever Green Initiative (Forever Green is a top FMR priority.)
- $300K cut to Minnesota Department of Health drinking water protection
- $275K cut to Minnesota Department of Health well-sealing cost share
- $1.79M cut to Minnesota Department of Health source water protection
- $150K cut to Minnesota Department of Health private well water supply protection
- Defunding (-$2M) the Water Legacy Grants Program
- Defunding (-$2M) Aquatic Management Areas
- Defunding (-$1.5M) Forests for the Future
- Defunding (-$250) county geologic atlases
- $650K in legislative earmarks for specific projects in violation of Clean Water Fund tradition

  • House

- $5.6M cut to Minnesota Board of Water and Soil Resources drinking water and surface water protection and restoration grants
- $3.5M cut to Minnesota Board of Water and Soil Resources targeted wellhead/drinking water protection
- $2.76M cut to various water monitoring, planning and protection strategies
- $2 million less for Aquatic Management Areas through the Department of Natural Resources
- $1.5 million less for Forests for the Future through the DNR
- $950,000 cut to U o fM Forever Green Initiative
- $850K cut to point source pollution grants
- $362K cut to county inspection and repair of faulty wastewater (SSTS) systems
- Defund (-$3M) Conservation Reserve Enhancement Program (CREP)
- Defunding (-$2M) the Water Legacy Grants Program
- Defunding (-$2M) Aquatic Management Areas
- Defunding (-$1.5M) Forests for the Future
- $800K in legislative earmarks for specific projects in violation of Clean Water Fund tradition

  1. Bad Policy: The House includes a “No Net Gains of Public Lands” provision, applicable in any county that chooses to pass a no-net-gain policy. This language allows a county board to thwart local and statewide conservation goals in violation of Minnesota voter's intentions as indicated by their support of the Legacy Amendment. This language exists in multiple other bills this session.
Omnibus Agriculture Finance (SF780)

Status: vetoed 5/12/17
Veto information: read Governor Dayton’s veto letter here.
The Omnibus Agriculture Finance fails to provide and funding for the University of Minnesota Forever Green Initiative. Forever Green research is essential to developing economically viable perennial crops and cover crops that protect our water while boosting farm profits. The full bill includes no additional investment from the previous biennium while allocating 88% of funding to a single program (Agricultural Growth, Research, and Innovation (AGRI)). This missed opportunity to fully fund Forever Green comes on top of the proposed cuts to the program in the House & Senate Legacy bills.

Bonding

Status: awaiting legislative action
While the prospects of a bonding bill remain uncertain, FMR remains supportive of a robust bonding bill that includes the following two priorities:
 Conservation Reserve Enhancement Program ($45M)
We support funding for the Reinvest in Minnesota Reserve conservation easements for federal CREP match. RIM helps willing Minnesota farmland owners to conserve soil, eliminate erosion, protect habitat and improve water quality. It also helps cover the cost of installing and maintaining buffers where required under the buffer law passed in 2015 and amended in 2016. State bonding at $45 million for RIM will leverage another $105 million in Federal dollars, and is part of a five-year 100,000-acre clean water effort. Full funding through bonding reduces CREP demand for Legacy dollars, freeing up amendment funds for other projects.
• Water Infrastructure Investment ($167M)
We support funding for the Public Facilities Authority for three critical water infrastructure programs:
- Water Infrastructure ($25M): These funds help local governments repair and modernize their aging wastewater and drinking water systems through essential clean water and drinking water projects. These projects serve the needs of residents and businesses alike. State funds trigger Federal grants and support affordable, low-interest loans.
- Wastewater Infrastructure Fund ($80M): The Water Infrastructure Funding Program increases aid to communities rehabilitating aging wastewater and drinking water infrastructure systems. Grant funding is based on the average household income of residents and is designed to keep clean water affordable for Minnesotans.
- Point Source Implementation Grants ($62M): The Point Source Implementation Grant Program helps lift the burden off local communities’ wastewater treatment plant upgrades. Upgrading wastewater treatment plants is a tried and true method of improving water quality and making progress on water quality restoration and protection goals.

(1) Statewide poll, with an oversampling of rural Minnesota, conducted February 1 – 5, 2017 by the national bipartisan polling team of Public Opinion Strategies and Fairbank, Maslin, Maullin, Metz & Associates.

(2) Session Laws 2015, 1st Special Session, Chapter 4, Article 3, Section 4: “The base [general fund] for the board in fiscal year 2018 and thereafter is increased by $11,000,000 for grants to soil and water conservation districts to implement buffer requirements.”